Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:

• Confidential investigative techniques and procedures used by law enforcement agencies; and
• Information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.

Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:

• subject officer name(s)
• witness officer name(s)
• civilian witness name(s)
• location information
• witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence and
• other identifiers which are likely to reveal personal information about individuals involved in the investigation

Personal Health Information Protection Act, 2004 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the serious injury sustained by a 39-year-old man during his arrest on January 9, 2017.

Notification of the SIU

On January 9, 2017 at 8:50 a.m., Peel Regional Police (PRP) called the SIU to report a custody injury.

PRP reported that at 1:10 a.m., Subject Officer (SO) #1 was dispatched to a residential address in Brampton. A taxi driver had reported that his passenger, an intoxicated man [later learned to be the Complainant], was delusional and on the ground.

SO #1 responded to the call and requested assistance. SO #2 attended. The police officers had a physical confrontation with the Complainant, who suffered an eye injury. The Complainant was transported to the hospital.

The attending physician advised that the Complainant’s eye injury was superficial; however, the Complainant suffered fractures to his nose and one of his ribs.

The team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 1

SIU Forensic Investigators responded to the scene and identified and preserved evidence. They documented the relevant scenes associated with the incident by way of and photography.

Complainant

39-year-old male interviewed, medical records obtained and reviewed

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

Subject officers

SO #1 Interviewed, and notes received and reviewed

SO #2 Declined interview and to provide notes, as is the subject officer’s legal right.

The scene

The arrest of the Complainant occurred in front of a residence in Brampton. The taxi was parked opposite the residence. The roadway was asphalt with cement curbing. The area was partially ice and snow covered.

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from PRP:

• communications recordings
• activity log – the complainant
• audio copy report - COMM
• audio copy report - radio transmissions
• event chronology
• notes of WO #1, WO #2, WO #3 and WO #4
• occurrence details
• prisoner details report
• procedure - use of force
• procedure - criminal investigations, and
• PRP witness statements for CW #1 and CW #2

During the early morning hours of January 9, 2017, CW #2 called 911 at the request of CW #1, to report that CW #1’s passenger, the Complainant, was intoxicated and damaging his taxi cab. The Complainant was outside the taxi with CW #1 locked inside the taxi at the time.

SO #1 was the first officer to arrive on scene. Upon his arrival, SO #1 observed the Complainant damaging the taxi cab, and advised the Complainant that he was under arrest. The Complainant resisted SO #1’s efforts to handcuff him, and ripped the taxi sign from the cab and held it above his head while turning towards SO #1. SO #1 tackled the Complainant and both men fell to the ground, with the Complainant landing on his face. The Complainant continued to resist being handcuffed, and SO #1 delivered several elbow strikes to the Complainant’s right side and upper back. SO #2 arrived on scene and the Complainant stopped struggling and was handcuffed.

The Complainant resisted being placed into SO #2’s cruiser to be transported to the station, however, and WO #4 delivered several knee strikes to the Complainant’s upper thigh in order to stop the Complainant from being combative and to get him into the cruiser.

Because of his visible injuries, the Complainant was transported to hospital where it was determined that he had sustained a fractured nose and a fractured eighth right rib.

Section 430, Criminal Code – Mischief

430 (1) Every one commits mischief who wilfully

1. destroys or damages property
2. renders property dangerous, useless, inoperative or ineffective
3. obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
4. obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property

(4) Every one who commits mischief in relation to property, other than property described in subsection (3),

1. is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
2. is guilty of an offence punishable on summary conviction

Section 25(1), Criminal Code - Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

1. as a private person
2. as a peace officer or public officer
3. in aid of a peace officer or public officer, or
4. by virtue of his office

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

Section 31(4), Liquor Licence Act – Intoxication

(4) No person shall be in an intoxicated condition,

1. in a place to which the general public is invited or permitted access; or
2. in any part of a residence that is used in common by persons occupying more than one dwelling in the residence

On January 9, 2017, at 2:06:06 a.m., a 911 call was received by PRP requesting assistance regarding a male who was apparently outside of a taxi cab at a residence in the City of Brampton and possibly overdosing on something. The caller, CW #2, advised that initially the male person was lying on the ground and was disoriented and uncooperative, but then stood up and appeared to be doing damage to the taxi cab. SO #1 and SO #2 as well as WO #1 were dispatched to investigate. The Complainant was later arrested for mischief to property contrary to the Criminal Code and transported to hospital where he was assessed and it was determined that he had sustained a fracture to his nose and to his eighth right rib.

The Complainant acknowledged that he was intoxicated at the time, and had no recollection of his interaction with police until being removed from the ambulance with two police officers present. Despite the Complainant’s lack of memory, there were two independent civilian witnesses to the Complainant’s interaction with police and there is no dispute as to the facts. Both witnesses described the Complainant as intoxicated and damaging CW #1’s taxi cab.

The first police officer to arrive on the scene was SO #1, who attempted to place the Complainant under arrest; SO #1 placed his right hand on the Complainant’s right wrist and his left hand on his right tricep and tried to place his hands behind his back for handcuffing. The Complainant shrugged SO #1 off and pulled the taxi sign from the roof of the taxi, lifted it over his head and turned towards SO #1. SO #1 advised that he thought the Complainant was going to strike him with the sign and he lowered his body, put his arms around the Complainant’s mid-section and pushed him towards the front of the taxi, where they both fell to the ground; this was observed and confirmed by both civilian witnesses. SO #1 landed on top of the Complainant, who was face down, with his arms still wrapped around the Complainant. SO #1 described this as a hard landing with the Complainant’s face making contact with the ground as both the officer and the Complainant’s feet left the ground. After the fall, both civilian witnesses observed that the Complainant continued to struggle while SO #1 attempted to handcuff him.

SO #1 indicated that once the Complainant let go of the taxi sign, he tried to control the Complainant by keeping all of his weight on him and mounted his lower back by his waist and held him down with both hands; the Complainant continued to resist and push up while SO #1 repeatedly told him to stop. The Complainant then grabbed onto SO #1’s right leg and tried to pick him up, at which point SO #1 indicated that he delivered two to three hard right elbow strikes to the Complainant’s right shoulder area; SO #1 believed that the strikes had no effect on the Complainant.

SO #1 then tried to radio for back up, but did not believe that it went through, whereupon he tried to radio a second time to request a rush on the back up. The communications recording confirms that an initial garbled transmission is received from SO #1, who is then cut off, and seconds later a second transmission is received requesting a rush. SO #1 advised that the Complainant continued to resist and tried to lift up his right leg and SO #1 delivered two or three more elbow strikes to the Complainant’s rights shoulder and upper back, while continuously advising the Complainant that he was under arrest and to stop resisting; SO #1 advised that the Complainant never let up in his efforts to resist. SO #1 advised that he was finally able to handcuff the Complainant’s right hand, but that the Complainant then pulled his wrist away and again tried to grab SO #1’s right leg, whereupon SO #1 delivered more elbow strikes to his upper shoulder area, which finally caused the Complainant to relax and SO #1 was able to use his radio to advise that he now had the Complainant pinned to the ground; this transmission is also confirmed on the recording.

SO #2 then arrived at the scene to assist SO #1 and, between the two of them, they were able to handcuff one hand each using two different sets of handcuffs, and then link them together. When WO #1 arrived, he observed SO #2 to have control of the Complainant on the ground, while SO #1 was standing above them and out of breath; he described the Complainant as breathing heavily and sweating, and heard the Complainant say that he was not going to resist. When SO #2 tried to put the Complainant into his police cruiser, the Complainant was again observed to resist and push back from the police cruiser, at which point WO #4 delivered four knee strikes to the back of the Complainant’s right leg in the hamstring area and police officers were able to regain control of him.

All police officers who arrived to assist observed SO #1 to be out of breath and numerous police officers heard SO #1 say that the Complainant had resisted and fought against him and that he had taken him to the ground and held him there until SO #2’s arrival; these utterances made at the time of the incident are consistent with the statement of SO #1 to investigators.

Neither of the civilian witnesses, who were present for the entirety of the arrest and handcuffing of the Complainant, had any criticisms of the actions of SO #1 or SO #2, or any police officer, in their treatment of the Complainant and both confirmed that the Complainant was physically resisting and struggling with the police officers throughout.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the statements of CW #1 and CW #2 that the Complainant was intoxicated in a public place and was damaging CW #1’s vehicle, and was therefore arrestable both under the Liquor Licence Act for being intoxicated in a public place and under the Criminal Code for mischief to property. As such, the apprehension and arrest of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by police officers in their attempts to subdue the Complainant, I find that their behaviour was more than justified in the circumstances and that they used no more force than necessary to subdue the Complainant who was clearly intoxicated, resisting and actively struggling. While I find that the Complainant suffered his injuries during the interaction with police officers and that his nose was likely broken when SO #1 grounded the Complainant causing him to fall hard and strike his face on the ground and that the injury to his rib likely occurred either when SO #1 delivered the elbow strikes to his body or when he delivered the knee strikes to his left side rib area in an effort to subdue the Complainant, I cannot find these actions to have been an excessive use of force. On this record, it is clear that the force used by both SO #1 and SO #2 and later by WO #4, who delivered four knee strikes to the Complainant’s right leg area, progressed in a measured and proportionate fashion to meet and overcome the Complainant’s struggling and unrelenting resistance, and fell within the range of what was reasonably necessary in the circumstances to effect his lawful detention.

In coming to this conclusion, I am mindful of the state of the law as set out by the Supreme Court of Canada in R. v. Nasogaluak, [2010] 1 S.C.R. 206, as follows:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

Additionally, I have considered the decision of the Ontario Court of Appeal in R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.), that police officers are not expected to measure the degree of their responsive force to a nicety. In this instance, where the Complainant was initially wielding the taxi sign and SO #1 believed that the Complainant was going to strike him with it, it was incumbent upon SO #1 to take control of the Complainant as quickly as possible, not only for his own safety, but the safety of other witnesses in the area. As such, although the grounding of the Complainant was described as a hard landing and likely caused the injury to the Complainant’s nose, I cannot find fault with SO #1 who needed to act quickly and could not afford the luxury of measuring his response to a nicety. Additionally, the later decision to deliver a number of distractionary strikes to the Complainant, who continued to struggle and resist, was justified in that SO #1 had already exhausted other options to no avail.

In the final analysis, I am satisfied for the foregoing reasons that the Complainant’s detention and the manner in which it was carried out were lawful notwithstanding the injuries which he suffered. I am, therefore, satisfied on reasonable grounds on this record that the actions exercised by the police officers fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

Date: October 23, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit